Trade Bill

Debate between Viscount Hailsham and Lord Stevenson of Balmacara

Report: 1st sitting: House of Lords
Wednesday 6th March 2019 Lords Chamber

[Lord Stevenson of Balmacara]

I will keep the Minister in suspense about what I am going to do, but not for long. I am grateful to all noble Lords who have contributed to this debate, which has been high level, and interesting in that some of the issues which perhaps have been a bit confused have been allowed to emerge in it.

I make it absolutely clear at the start that I do not believe that the amendment in my name and those of the other noble Lords who have joined me is a perfect solution to the problem we are facing. The noble Viscount, Lord Hailsham, is quite right to pick up a number of inconsistencies in that—noble Lords do not have to laugh that loud. But in my mitigation, may I say that it is not the job of the Opposition to draft for the Government the sort of detailed legislative framework which is being talked about here? This needs a lot of time, effort and attention which we are not able to bring to it.

[Viscount Hailsham]

Does the noble Lord then accept that it is necessary to have some provision to deal with the situation that would arise under proposed new subsections (1) and (4), where the two Houses disagree?

[Lord Stevenson of Balmacara]

Yes—but I do not have it. I challenge the Minister: if she is asserting that we are as close as she says we are, would she agree to have further discussions and bring forward an amendment we could both support at Third Reading? I will give her time to seek inspiration. I am not confident that it will come in any palatable form but I make this offer genuinely. It is so important and the principles so germane to what we are doing that we should try to go the extra mile if we can.

Having said that, I think the Government are hiding behind a completely fantasised world in which everything is rolled back, as someone said, to the 19th century with the royal prerogative secure in its place. Somehow, Parliament would be consulted; it would be able to scrutinise and look at the outline approach. The clue is in the language: why outline an approach except to mandate? Why scrutinise, when what we are talking about is post hoc discussion in Committee, reports that will gather dust in libraries but not have any effect, and no chance to influence at a parliamentary level what is being decided.

There are issues of principle at stake—about who has the right to make the decisions that will literally affect the people of this country in a very material way. This is because of the way in which trade has moved away from being simply about goods. It now involves services and a whole range of socioeconomic issues that need to be addressed in the round, at the highest level, by those elected by the people they serve. We have a role, though not as an elected House. I say to the noble Viscount, Lord Hailsham, that, in any discussion about priority, of course it has to be the Commons that takes the final decision.

These proposals need to be worked through properly. I will pause for a second to allow the Minister to respond on whether she is prepared to take this up at Third Reading. I will talk until I have to sit down, but I will give way to her if she wishes to make a comment.

Data Protection Bill [HL]

Debate between Viscount Hailsham and Lord Stevenson of Balmacara

Report: 3rd sitting (Hansard - continued): House of Lords
Wednesday 10th January 2018 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, the Government introduced quite late in the proceedings in Committee a group of amendments that set up a parallel system under which data processing undertaken by government departments could be considered to be governed. Our Amendment 176 attempts to ask some questions, and in that sense it is a probing amendment. It probably does not work as it stands, on reflection, but it raises important points. Because the Government introduced the amendments so late in the day, I feel justified in asking for a response to some of our questions around them. The scrutiny that we could have given to the amendments did not take place, and I am grateful to the noble Lord, Lord Clement-Jones, for adding his name to the amendment and look forward to his comments later.

The main purpose of the amendment is to get on record from the Secretary of State a set of answers to questions. To be clear, we are talking about the framework for data processing by government to which the original amendments apply, and to which our amendment refers, covering all data held by any public body, including the NHS. It is both outside the ICO’s jurisdiction and under the direct control of Ministers. The courts are bound by the framework, as are tribunals, and a special case exists only for international law. I am not quite sure how that works, so maybe we can get some answers on that. There may well be updates, but if there are changes, they will be applied retrospectively. It is quite a significant package in terms of powers. I understand that there may be nothing wrong with that if everything else is working. In a sense, if one wants efficient government and effectiveness, one is asking for such things to be in place. I am not criticising that.

There are questions. First, on the name, why is it a framework and not a code of practice? Codes of practice are defined in the Bill and have considerable consequences as a result. There is a standard for developing them and a process under which they take place. There are regulatory arrangements and the involvement of Parliament, but that does not apply to the framework. In other words, the Government’s own data does not go through the processes that apply to other data.

Why do the Government’s proposals exempt public sector processing from normal data protection law? Surely if the concern is about making sure that a subject’s data is always looked after properly, and data controllers, whoever they are, are doing it in accordance with the procedures set out at length by the Bill, in the GDPR and in the derived legislation that will take place—if we leave—under Brexit, all we are getting is a way of keeping people out of any consideration regarding the data that is held by government. Citizens’ data should really belong to citizens and we should not have a situation where it is looked after by Ministers on behalf of Ministers and there is no external view.

One could make a strong case—I am not necessarily doing that, but others have—that the Secretary of State has the power to create their own framework for the data protection of their own data and their own department. They can ignore completely what the Information Commissioner may say about that framework—she has no locus in that. The framework can be brought to Parliament but it is a negative procedure, not an affirmative one, so it is very difficult to scrutinise. We can vote against it; we can certainly discuss it if we see it in time, but it will not be at the same level of scrutiny as perhaps applies to other matters. Barriers can be raised, and the ICO’s enforcement mechanisms can be fettered, extended or changed.

I am sure that the Minister will have good answers to that and I am in no sense trying to attack the basic principle. I just wonder whether there is not a case here for Caesar’s wife—excuse the old-fashioned language, but it is a quotation, not a reference. Caesar’s wife was always required to be above suspicion, above any other public person in Rome of the day. I say that with detailed knowledge having just been to the RSC’s performances of the Cicero plays, as I think I already mentioned. Sorry if I am boring people.

Nevertheless, it raises in one’s mind the issues of standards and propriety in public life in a forceful way. Blood was more common then than it might be today, but the issue is right. If you are in a public position and a public responsibility is placed on you, you must not only be above reproach, you must be seen to be above reproach. I am not sure that the government amendments satisfy that. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I have only two brief observations to make, one supportive and one otherwise. My supportive observation is that I am very much in favour of the use of the affirmative resolution procedure for the approval of regulations, rather than the negative one. I add in parenthesis that I have always believed that we in Parliament should be able to amend under the affirmative resolution procedure. When we come to the European Bill, that will be particularly important, but that is for another day.

Where I disagree with the noble Lord is on his proposal that the commissioner should be responsible for preparing the document. That seems to me essentially a matter for the Secretary of State, because of the principle of ministerial responsibility. Ministers can be questioned and quizzed in a way which is utterly impossible for Parliament to do with the commissioner. There is also a small technical point. If a Minister has to come to Parliament—for example, under an affirmative resolution procedure—to argue in favour of regulations which he or she has not made, but which have, rather, been made by the commissioner, that could be at least a trifle embarrassing.